Customary International Law - Essay Example

Can a “object” to a rule of customary international law? Consider with reference to the contemporary world arena. Customary international law, it is normally acknowledged, owes its starting place in the extensive unswerving practice of states. For this reason, international custom is considered a good a source of international law for the reason that if states take actions in a definite consistent conduct, then these states may be performing in that manner, for the reason that they owe to themselves a good judgment of legal obligation – as expressed in the Latinism, opinio juris. International law on its part can aptly be considered as a system of rules or agreements binding international actors and in most states, states. International law sets the limits on and relations between and among states. International law is not a new concept. Keep in mind that rudimentary international law was evident as far back of the fourth millennium B.C, when belligerents consented to observe truces for holidays and other similar situations. Homer\s The Iliad and Thucydides\s The Peloponnesian Wars are abounding with references to armistices, acceptance of heralds in addition to other customary standard behaviour connecting peaceful or warring parties. But is should also be remembered that such references are equally filled with instances of agreements being dishonoured. Modern international law, customary international law being part of it, gradually evolved as states gained status. Denial S Papp1 states that Hugo Grotius is usually taken note of as the father of modern international law with references to his work, On the Law of War and Peace, published in 1662. His publication paved the laying of the foundations of the rights and responsibilities that states are obligated to each other. It is on the writings of Grotius that the entire systems of treaties, tribunals as well as similar codes of international conduct take their extraction. From the readings of Grotius’s publications, at least four separate interpretations of what international law is, exist.2 These include: the naturalist school of law exemplified by Samuel Pefundorf (The Law of Nature and of Nations, 1672); the positivist school of law, led by Cornelius van Bynkershoek (Forum for Ambassadors, 1721 and On Questions of Public Law, 1737); the eclectic school of law led by Emmerich de Vattel (The Law of Nations, 1758) and finally the neorealist outlook. The more general view is that states interpret and adopt whatever view of international law that best shores up the most preferred course of action. There are various sources of international law to which states can tie themselves to each other. Article 383 of the Statute of the ICJ list four separate sources of international law – the international conventions, international customs, general principles and subsidiary sources of law.4 International customs refer to that part of international law that regulates “the general standard of behaviour and action accepted by actors”5. This also refers to a precept of international law that any widely accepted behaviour or action over time becomes a part of the body of international law. Laws governing diplomatic and consular immunity and privilege as well as ocean law and high seas law evolved from the principle of international customs. Customary international law should therefore be identified by a careful assessment of the performance of states in particular areas, although not all observable practice will be considered as a source of law. For a practice to throw in to the creation or consolidation of customary international law, “it must be accompanied by a certain subjective sense on the part of the state concerned that what it is doing is being done because it is legally right but is not being done out of any constraint: the classic texts refer to this state of mind as the opinio juris sive necessitates’.6 Can A State “Object” To A Rule Of Customary International Law? An appropriate approach to get an inclusive answer to this question can be decided by knowing who the subjects of customary international law are. At first, only states were subjects of customary international law. But this has gradually changed with development. Accordingly, the answer to the above question will appear a more thorny issue. This is because despite the fact that states have always made themselves subjects of customary international law, a good number of states may declare that in certain cases, special circumstances may prevail and they object and opt out or declare that they are exempt of customary international law. Professors Bradley and Gulati state that there is a perceptible divide in global legal theory allowing states parties to customary international law to unilaterally object to a rule of customary international law but once it is “crystallised,” that an existing rule or rules will not be subjected to subsequent violations.7 This is referred to in international law as the “persistent objector” rule. What is the literal inference from this? It is apparent that there is somewhat extensive conformity that, even if the rule of persistent objector subsists in customary international law, it takes effect only when a rule of customary international law is in the course of being brought into action. Consequently, it does no good to states that entered into any of such agreement over which the rule is binding only subsequent to the development of rule on those states which were caught up within the ambit of the rule only at a later stage. Yet, little or nothing can it be raised by states that were in existence at that time and that were previously engaged in any action or actions which were subject of the rule, but failed to raise any objection at that stage. To put it simply, no ‘subsequent objector’ rule exist.8 Bradley and Gulati invite views whether the rule was in actual fact deliberated to constitute an exclusion to the “Mandatory View” and whether the rule has masked the alternative that states have, in reality, seized a “Default View,” which permits states to object and eventually avoid a rule of customary international law with adequate notice and probability safeguards.9 Discussions relating to this issue will lead to a review of various decisions by international bodies such as the United Nations or the International Court of Justice and how they have agreed or departed from the issue in relation to the calculus of consent to object or opt out of a rule of customary international law. How Can States Object To A Rule Of Customary International Law? There is no single answer to this as every case will depend on its facts. Therefore, even at the level of the International Court of Justice, precedence may not be followed. As soon as customary international law obligations have been foiled by a lack of consensus or an emphatic and occasional denial of opinio juris, and once this objection has gained momentum, it becomes really difficult to compel the party at breach to adhere to the rules. Thus, a broad-spectrum conjecture is that, except a state has with determination, objected during the course of crystallizing a rule of customary international law, it must be bound by that rule, even if it later violates the rule in question. Although it is argued that ’the persistent objector rule has substantial authority from international precedents”10 Maurice H. Mendelson11, upholds that the true situation is that “the persistent objector rule has no legitimate basis in the international legal system”.12 Given the present international order, a state can “object” to a rule of customary international law and in most cases, even go unchallenged. To begin with, a very conspicuous problem associated to customary international law, is that it has an insufficiency found in its very own definition. For a law to become a portion of customary international law, the law must be an outcome “from a general and consistent practice of states followed by them from a sense of legal obligation.”13 This definition gives credence only to the “general and consistent practice of” member states and makes no allusion with regards to the interests of citizens. For that reason, customary international law disregards democratic decision making. Customary international law has some conspicuous democratic flaws, often visible or apparent in practice. A member states is not obligated to give an express affirmation to the formation of a rule of customary international law. In its place, member states are judged to have accepted a rule of customary international law if they simply do not raise objections to it.14 Can domestic political actors create rules of law by remaining silent? The answer is a vehement NO. International customs and treaties are often mere undertakings. A good number of states fail to give these international rules domestic effects. Rules of customary international law are vague. They are hardly codified. Hence, their construction and eventual effect sometimes prove ambiguous. A bulk of a state’s population has weak understanding of rules of customary international law15 because these rules are sometimes drawn up in distant places and void of their concerns. A state ought to be more accountable to its citizens if the citizens are given the opportunity to legislate laws which will bind them. Kelsen and Hart eminently disputed that, to a degree that rules of custom play any responsibility in international legal compulsion, it is merely a mark of a “premature” legal order.16 Another typical situation will concern the status of individuals with regards to customary international law. It should be noted that with the present dispensation, the status of individuals under customary international law remains unclear or wandering off the point. At first, individuals were accountable to and protected by international law only through their respective governments. After World War I and World War II, it became clear that individuals could be tried before international tribunals in relation to acts of state as well as crimes committed against humanity. This therefore set a precedent for affording international tribunals, the right or jurisdictions over individuals and their rights. But the issue which is of less certainty is whether individuals have the right to initiate proceedings at these international tribunals. But there is an exception to this with the European Court of Human Rights where courts of the European community enjoy domestic as well as international jurisdictions. A different case in point which makes it possible for a state to object to a rule of customary international law is in relation to the enforcement of international legal rights. In most cases, where there is inability to apply sanctions, a state may object to a rule of customary international law. Professor J. L. Brierly, a leading intellectual of international law attends to this issue in brief and exact terms that is worthy of reiteration: “the international system has no central organ for the enforcement of international legal rights as such, and the creation of any such general scheme of sanctions is for the present a very distant prospect…each state remains free…to take such action as it thinks fit to enforce its own rights. This does not mean that international law has no sanctions, if that word is used in its proper sense for securing observance of the law; but it is true that the sanctions which it possesses are not systematic or centrally directed, and that accordingly, they are precarious in their operations. This lack of system is obviously unsatisfactory, particularly to those states which are less able than other to asset their own rights effectively.” 17 Conventionally, suctions for violations of customary international law have been left to the distressed party; and in most extreme cases, the aggrieved parties have always resorted to violence although a good number of alternative sanctions have been enforced. Yet, one more possibility for a state to object to a rule of customary international law is due to the United Nations inability to come up with a united force or a body in which the effects of its unified whole can implement its sanctions. It should be noted that the United Nations has got means at its disposal to initiate sanctions, bit it too has to rely on member states to implement them. For example, the United Nations Command in Korea became operational for the simple reason that the bills were footed by the United States in addition to making provisions for a majority of forces on the ground. There are so many other UN peacekeeping missions which have operated on continuous futility because of supplier-nation withdrawal. UN economic sanctions have equally been put into action in a good number of cases, but they have also existed in constant jeopardy because member states have attempted pursuing their policies which they find suitable. It is obvious that sanctions applicable for breach of customary international law have proved to be weak and ineffective. But the decentralized mode of application of sanctions is perhaps, one of the greatest reasons why states can sometimes object to a rule of customary international law. But why is there no biding precedence on cases involving international legal rights? The only probable answer is that the International Court of justice had the intention of holding back regional customs, and it discovered that there was a better way of doing this rather than to assert an opinion that deeply upsets the conceptualization of such regional customs. The ICJ experienced no worries or obstacles trying to put into effects, customs of regional bodies. But it was worried that the progress of individual bodies of regional rules might out of all proportions; obstruct the universal aspirations of customary international law. The result will be that such regional rules which would be numerous and easy to formulate, may, to a certain extent, reduce the powers of the ICJ. Without a doubt, Bradley and Gulati take a further step to emphasize that “the only way for nations to object to a rule of customary international law (as opposed to overriding it by treaty) is to violate the rule and hope that other nations accept the new practice.”18 Does all this not sound obstinate? It is sometimes meaningless to imagine how a rule of customary international law, as soon as it is created, later modified is eventually killed D’AMATO puts this in a better way by asking “how can there be desuetudo for custom (consuetudo)?”19 Bradley and Gulati are of the same view that this sort of attitude will eventually kill any rule of customary international law.20 This school of thought holds that any violation of an existing custom “contains the seeds of a new legality,” and that “each deviation contains the seeds of a new rule.”21 On the other hand, it is argued that this is “a wholly erroneous belief,”22 and it has been disproved in practice. Keep in mind that custom develops over time. Humanitarianism has provided another impetus for states to object to a rule of customary international law. But again there is considerable debate on the extent long with the motive of humanitarianism. What is supposed to be the standard or measured degree of humanitarianism that will compel a state to object or violate a rule of customary international law? On the contrary, critics oppose any form of humanitarian intervention that will act as a basis for an objection of customary international law and strongly call attention to the fact that it will culminate into a foundation of future insecurity. For this reason, Jonathan Charney disagrees that grounds for humanitarian intervention will constitute an utter violation of the UN Charter in addition to creating a menace to stability within the international legal order. He furthers states that "any suggestion that it stands for the right of foreign states to intervene in the absence of proof that widespread grave violation of international human rights law are being committed ... leaves the door open for hegemonic states to use force for purposes clearly incompatible with international law".23 Charney claims, that "it is international law, particularly UN Charter law, which remains the best guarantor we have of peace and security, order, and protection of human rights".24 It is worthy of note here that the unconstructive characteristic of any possible humanitarian intervention grounds is that states can easily manoeuvre it for biased needs. As a result, adversaries of this humanitarian intervention disagree on the basis that humanitarian intervention ought to be illegal due to its susceptibility to abuse for imperialist purposes. Anne Orford, a proponent of humanitarianism equally accepts as true that the basis that humanitarian intervention on which a state can object to a rule of customary international law ought to be illegal due to its susceptibility to abuse for imperialist purposes.25 Time has not gone too far to tell how the issue of self-defence gradually developed into a political mechanism for more powerful states to employ the use of force and later substantiated it as an act of self defence. Dixon puts it simply that an “aggressor state usually tries to mask its aggression by pleading a claim of right such as self-defence, legitimate invitation multilateral authorization”.26 Conclusion Yet, to leap into a conclusion that a state “object” to a rule of customary international law would be an erroneous view in the sphere of international law. What is known is that, the inability of sanctions does not mean that customary international law is dead or deemed to die. Although many of the objections and eventual breaches to rules of customary international law have become common notice, compliance with customary international law, whether it is through custom, treaty, subsidiary source or principles, is what should be the most prescribed form of behaviour in international law. Remember that daily observation has it that more international agreements are respected than violated. Thus, the question that: Can a state “object” to a rule of customary international law? – is only a rare challenge and should never act as a limitation on customary international law. The fundamental test for customary international law is to keep hold of its dynamism in addition to its legality.27Remember the conventional principle for customary international law protected in the ICJ Statute Article 3828 does not constitute a flawed necessity. But it still remains paying allegiance or objecting to a rule of customary international law. Customary international law will better serve all state parties if there is common or shared value that all states become conscious that there is a lot to benefit from cooperation. But concession should always be given to the position of a persistent objector. Also, rules of customs that have lived longer than they can have value should be eased out. If this is achieved, state parties to rules of customary international law should have nothing to talk about going back to objecting or opting out of a rule of customary international law. Read More